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LEVINSON v. COMMONWEALTH (05/28/59)

May 28, 1959

LEVINSON
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 29, Jan. T., 1959, from judgment of Court of Common Pleas of Bucks County, May T., 1955, No. 184, in case of Irving B. Levinson et al. v. Commonwealth of Pennsylvania, State, Highway Department. Judgment reversed.

COUNSEL

Frank Edward Roda, Chief Right of Way Counsel, with him Donald Blanken and Joseph R. Ritchie, Assistant Attorneys General, John R. Rezzolla, Chief Counsel, Department of Highways, and Thomas D. McBride, Attorney General, for Commonwealth, appellant.

John J. Collins, with him William F. Heefner, and Curtin and Heefner, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Musmanno

[ 395 Pa. Page 614]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiffs owned in Bucks County a tract of land embracing an area of 16 1/2 acres. In 1953 the Commonwealth of Pennsylvania, through eminent domain proceedings, condemned approximately a half acre of this land for the purpose of widening and relocating a road which bordered the plaintiff's property. A board of viewers awarded the plaintiffs $25,000 in damages. On appeal to the court of common pleas, the jury returned a verdict of $31,860.

The Commonwealth asks for a new trial averring that the trial court erred (1) in not permitting Commonwealth's counsel to cross-examine a witness for the plaintiffs as to whether he took into consideration, in arriving at his estimate of market value, the purchase price of the property; and (2) in admitting testimony on behalf of the plaintiffs as to the estimated cost of an improvement which would adapt the land for commercial purposes whereas it had not been so used prior to the condemnation.

The first reason is without merit. The purchase price of land may be wholly misleading as to its precondemnation market value since the value of real estate in the area involved may have vertically zoomed or perpendicularly dropped because of conditions which do not apply exclusively to the condemned land itself.

[ 395 Pa. Page 615]

In the case of Berkley v. Jeannette, 373 Pa. 376, 381, this Court said: "When an owner of property offers himself as a witness upon the trial of his claim for damages due to a condemnation of his property or a portion of it, he may be asked on cross-examination what he paid for the property, if his acquisition thereof is not so remote as to deprive the purchase price of any relevant evidentiary worth; and, that is so, whether or not he testified to the value of his property upon direct examination. Introduction of the purchase price is not permitted, however, in order to influence, by comparison, the jury's determination of the property's value at the time of the condemnation."

The question put by Commonwealth's counsel in the case at bar could not qualify under any of the criteria indicated. The witness was not the plaintiff but an expert witness. Of course, if the expert had, in his direct examination, spoken of purchase price, or, even in cross-examination, volunteered some statement about purchase price, he would thus have opened the door of cross-examination on the subject. But here the cross-examiner attempted to force open the door himself. He asked the witness: "Of course, Mr. Happ, I don't suppose you took into consideration here what the Levinsons paid for the land, did you?" This constituted a very astute but vain attempt to circumvent the rule regarding irrelevancy of purchase price.

Moreover, the trial judge is vested with a certain discretion in matters of this kind. In Thompson v. American Steel & Wire Company, 317 Pa. 7, 11, this Court said: "He [the trial judge] is constantly faced with questions on evidence in their special relation to the issue to be tried. He must deal with such questions in the light of the purposes of the ultimate inquiry and ...


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